Milkie v. Tops Markets, Inc.

—Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Because the record, when viewed most favorably to plaintiff, establishes that defendant Tops Markets, Inc. (Tops) had notice of the likelihood of criminal conduct by third parties that would endanger the safety of its patrons, Supreme Court erred in granting its motion for summary judgment (see, Waters v New York City Hous. Auth., 69 NY2d 225, 228; see generally, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519; Newell v Swiss Reassurance Co., 181 AD2d 505, 506; Carroll v Ar De Realty Corp., 167 AD2d 216). The summary judgment motion of defendant Searcy Plaza Associates (Searcy) was properly granted because there was no evidence that Searcy had actual or constructive notice of such conduct (see, Cercone v Norstar Bank, 199 AD2d 987, lv denied 83 NY2d 756). We modify the order appealed from, therefore, by denying Tops’ motion for summary judgment. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Summary Judgment.) Present— Balio, J. P., Lawton, Wesley, Doerr and Davis, JJ.